The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the information presented in your correspondence.

Dear Mr. Nolen:

I have received your letter of May 1 in which you raised three
questions concerning the Freedom of Information Law.

The first concerns
rights of access to "the records of the
civil department of a sheriff, to wit, property executions; income
executions; payment information of receipts for fees,
disbursements, levy monies, etc...as authorized...under Article 52
of the N.Y.S.C.P.L.R." Article 52 of the CPLR pertains to the
enforcement of money judgments. As a general matter, the Freedom
of Information Law is based upon a presumption of access. Stated
differently, all records of an agency are available, except to the
extent that records or portions thereof fall within one or more
grounds for denial appearing in §87(2)(a) through (i) of the Law.
From my perspective, the kinds of records that you described should
be disclosed, unless they are sought for commercial or fund-raising
purposes. In Matter of Nicholas [458 NYS 2d 858 (1983)], a request
was made to a sheriff for records of income executions for a
certain period, and it was assumed that the request was made for a
commercial purpose. That being so, the denial of the request was
upheld in conjunction with §89(2)(b) of the Freedom of Information
Law. As you may be aware, that provision includes examples of
unwarranted invasions of personal privacy, one of which pertains to
the sale or release of a list of names and addresses if the list
would be used for commercial or fund-raising purposes
[§89(2)(b)(iii)]. Based on the foregoing, I believe that an agency
could condition disclosure upon the receipt of a certification or
affidavit by an applicant indicating that the records would not be
used for commercial or fund-raising purposes.

In the second area of
inquiry, you wrote as follows:

"...assuming some and/or all of such
information is available under F.O.I.L. could
such sheriff be required to supply such
information in electronic format and if some
of the information must be deleted from
disclosure, must an agency insist on paper
format which may result in paper exceeding
10,000 sheets, but conversely, if the agency
could write a simple computer program in say 1
hour and 'run in' in 5 minutes to 'delete'
exempt materials versus over 500 man hours of
personnel to 'delete' exempt material, which
method is mandated."

In this regard, the Freedom of Information Law pertains
to
existing records, and §89(3) of the Law states in part that an
agency need not create a record in response to a request. It is
emphasized, however, that §86(4) of the Freedom of Information
Law
defines the term "record" expansively to include:

Based upon the language
quoted above, if information is maintained
in some physical form, it would in my opinion constitute a "record"
subject to rights of access conferred by the Law. Further, the
definition of "record" includes specific reference to computer
tapes and discs, and it was held some fifteen years ago that"[i]nformation
is increasingly being stored in computers and access to such data should
not be restricted merely because it is not in
printed form" [Babigian v. Evans, 427 NYS 2d 688, 691 (1980);
aff'd
97 AD 2d 992 (1983); see also, Szikszay v. Buelow, 436 NYS 2d 558
(1981)].

When information is maintained electronically, it has been
advised that if the information sought is available under the
Freedom of Information Law and may be retrieved by means of
existing computer programs, an agency is required to disclose the
information. In that kind of situation, the agency in my view
would merely be retrieving data that it has the capacity to
retrieve. Disclosure may be accomplished either by printing out
the data on paper or perhaps by duplicating the data on another
storage mechanism, such as a computer tape or disk. On the other
hand, if information sought can be retrieved from a computer or
other storage medium only by means of new programming or the
alteration of existing programs, those steps would, in my opinion,
be the equivalent of creating a new record. As stated earlier,
since §89(3) does not require an agency to create a record, I
do
not believe that an agency would be required to reprogram or
develop new programs to retrieve information that would otherwise
be available [see Guerrier v. Hernandez-Cuebas, 165 AD 2d 218
(1991)].

If the information that you seek cannot be retrieved or
extracted without significant reprogramming, an agency would not,
in my opinion, be obliged to develop new programs or modify its
existing programs in an effort to generate the data of your
interest.

However, often information stored electronically can be
extracted by means of a few keystrokes on a keyboard. While some
have contended that those kinds of minimal steps involve
programming or reprogramming, I believe that so narrow a
construction would tend to defeat the purposes of the Freedom of
Information Law, particularly as information is increasingly being
stored electronically. In my view, if electronic information can
be extracted or generated with reasonable effort, if that effort
involves less time and cost to the agency than engaging in manual
deletions, it would seem that an agency should follow the more
reasonable and less costly and labor intensive course of action.
Whether a court in such circumstances would require an agency to
follow that course of action is conjectural.

Lastly, you wrote that "information contained on income
executions and property executions become part of a court/county
clerk file when completion is made (when the sheriff makes his
'return of service'" and asked whether "the release of the
information change[s] if the judgment/enforcement of the particular
papers is not fully completed/paid in full." I am not sufficiently
familiar with the process to offer an unequivocal response.
However, as indicated earlier, the Freedom of Information Law is
based on a presumption of access. Further, in general, I believe
that the kinds of records at issue became public when they come
into the possession of a court clerk or a county clerk.